PEOPLE v. CELESTINE (1981)

SUMMARY OF THE CASE

A. The First Trial (2d Crim. No. 35099)

On May 5, 1977, a 12-count information was filed by the District Attorney of Los Angeles County charging appellant with various crimes.   In count I, appellant and codefendant Richard Banks were charged with the murder of Violet Wauhob on November 15, 1976, in violation of Penal Code section 187.   In count II, appellant and codefendant Banks were charged with kidnapping Ms. Wauhob for purposes of robbery in violation of Penal Code section 209.   In count III, appellant and codefendant Banks were charged with the robbery of Ms. Wauhob in violation of Penal Code section 211.   Each count alleged that appellant personally used a firearm during the commission of the offense in violation of Penal Code sections 12022.5 and 1203.06, subdivisions (a)(1).   In count III, it was alleged that appellant and codefendant Banks personally inflicted great bodily injury on the victim within the meaning of Penal Code section 213.

Counts IV and V occurred on January 14, 1977.   Caryl Merin was the victim in each count.   In count IV, appellant was charged with the crime of robbery, Penal Code section 211, and it was further alleged that appellant inflicted great bodily injury on the victim, Penal Code section 213.   In count V, appellant was charged with violating Penal Code section 220 in that he assaulted Ms. Merin with the intent to commit rape and/or robbery, Penal Code sections 261, subdivision (2), and 211.

In counts VI, VII and VIII, appellant was charged, along with codefendant Banks, with three counts of robbery involving three separate victims occurring on October 20, 1976.   Each count also alleged that appellant personally used a firearm, to wit, a handgun, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivisions (a)(1).

In counts IX, X, XI and XII, appellant and codefendant Banks were charged with four separate robberies, Penal Code section 211, each robbery involving a separate victim and all of the robberies occurring on October 14, 1976.   In each count it was further alleged that appellant and codefendant Banks personally used a firearm, to wit, a handgun, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivisions (a)(1).

An amendment to the information charged defendant with two prior felony convictions, which he subsequently admitted.

After a trial by jury, the defendant was found guilty in count IV, Penal Code section 211, robbery, second degree.   The allegation defendant inflicted great bodily injury, Penal Code section 213, was found to be true.

Defendant was also found guilty as charged in count V, Penal Code section 220, assault with the intent to commit robbery.

Defendant was also found guilty in counts VI, VII, VIII, IX, X, XI, XII, Penal Code section 211, robbery, first degree.

The use allegation, Penal Code section 12022.5, in counts VII, VIII, IX;  was found to be true;  but not true in counts VI, X, XI, XII.

The jury was deadlocked as to counts I, II, III.   The court declared a mistrial as to counts I, II, III.   Defense motion to dismiss was denied.   Also denied was appellant's motion for a new trial.

On October 16, 1978, probation was denied and defendant was sentenced to state prison for the term prescribed by law on counts IV through XII.   Count IV was determined to be the base term, with sentence on each remaining count to be consecutive to each other and as to count IV.

The great bodily injury allegation, Penal Code section 213, in count IV, was to be consecutive to count IV.

The sentence on count V was stayed pending the completion of the sentence on count IV, at which time the stay of execution on count V was to be permanent.

The sentence on the use allegations, Penal Code section 12022.5, counts VII and VIII were stayed pending the completion of the sentence on count VI.

Defendant was given credit for one year, nine months, and twenty-eight days time served in custody.

On November 28, 1978, the trial court issued a nunc pro tunc order relative to counts VI, VII, and VIII.

B. The Retrial on Counts I, II, III (2d Crim. No. 36900)

The appellant filed a motion to challenge the jury venire.   After a pretrial hearing, the motion was denied.

After a trial by jury, the defendant was found guilty of count I, Penal Code section 187, murder, first degree;  count II, Penal Code section 209, kidnapping with the intent to commit robbery, Penal Code section 211, robbery.

Jury found defendant personally used a deadly and dangerous weapon, to wit, a gun, during all three offenses.   Also, that defendant intentionally inflicted great bodily injury on the victim during the robbery.

On October 31, 1979, a demand for a new trial was denied.   Probation was denied.

Defendant was sent to state prison for the term prescribed by law on all three counts.   All three counts to be concurrent with each other.

In counts I and II, on the charge of personally using a gun, defendant was sentenced to state prison for the term prescribed by law, but stayed pending appeal and then permanent upon completion of the sentence in count I.

In count III, the charge of personally using a gun, defendant was sentenced to state prison for the term prescribed by law, but consecutive to the sentence imposed on count III, and stayed pending appeal and then permanent upon completion of the sentence on count I.

Defendant was given credit for 1000 days for time served in custody, plus 334 days good time work time.   Defendant filed a timely appeal.

STATEMENT OF FACTS

A. The First Trial (2d Crim. No. 35099)

Defendant and appellant raised in this portion of his appeal, issues that pertain only to the alleged errors in the sentence that was imposed, in that the written judgment of October 16, 1978, does not properly reflect the oral pronouncement of sentence.

Counts I through III will be matters for discussion in the pretrial statement of facts portion of this opinion.   Here we are concerned with counts IV through XII, and that part of the summary of the case that sets out the sentences imposed in counts IV through XII which may be incorporated by reference at this point.

It is sufficient to merely restate that appellant Celestine and codefendant Ricky Banks were charged with numerous violations of Penal Code section 211, robbery, in counts IV through XII.   Defendant was also charged with a violation of Penal Code section 12022.5, the personal use of a firearm, to wit, a handgun, in counts VI through XII.   He was also charged with the infliction of great bodily injury, Penal Code section 213, in count IV, and a violation of Penal Code section 220, assault with intent to commit robbery, in count V.

There is no need to go into the evidence of the particular crimes charged in counts IV through XII because of the issues raised.

CONTENTIONS REGARDING THE FIRST TRIAL

1. The finding and sentence in count IV for the infliction of great bodily injury must be stricken.

2. The judgment of October 16, 1978, fails to clearly reflect that the sentence in count V was ordered stayed.

3. The judgment of October 16, 1978, should be modified in counts VII and VIII to reflect the stays of the enhancements of Penal Code section 12022.5.

DISCUSSION REGARDING THE FIRST TRIAL

I Should the finding and sentence in count IV for the infliction of great bodily injury be stricken?

 Defendant contends that the enhancement for the infliction of great bodily injury, former Penal Code section 213, should be stricken because the jury found that allegation not to be true.   The verdict form for that enhancement, and signed by the jury foreman, indicated the allegation was not true.   Also the clerk of the court read the form showing it not to be true.

The contention made by defendant is valid to a point.   However, at the time the clerk read that portion of the verdict which pertained to the enhancement, the jury indicated to the trial court that the verdict was incorrect.   Thereafter, the trial court polled each juror individually and each stated the verdict form was incorrect and that they did, in fact, find the allegation true.   The trial court then ordered the clerk to enter such a finding, which was done.

Penal Code section 1163 provides:  “When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.”

Certainly the procedure taken by the trial court, after it was made aware of the disagreement, was allowed by statute, and sufficient enough to protect the right of the defendant to an unanimous verdict.  (In re Chapman (1976) 64 Cal.App.3d 806, 134 Cal.Rptr. 760.)

The enhancement of infliction of great bodily injury in count IV is not stricken.

II Does the judgment fail to clearly reflect that the sentencing as to count V was ordered stayed?

 It does.   The record properly indicated the trial judge sentenced the defendant to state prison for the term prescribed by law on count V.   Further, the “execution of the sentence is stayed until completion of sentence on count IV, at which time stay on count V is to become permanent.”

Defendant contends the quoted wording makes no reference to what count was stayed pending the service of the sentence as to count IV.

We find no ambiguity in what the court said.   The oral pronouncement is accurately reflected on the judgment and needs no further clarification.

III Should the judgment rendered October 16, 1978, be modified in counts VII and VIII to reflect the stays of the enhancements of Penal Code section 12022.5?

Again we think not.   Defendant maintains the following recital of the judgment is incorrect:  “SENTENCE ON FINDING IS STAYED UNTIL COMPLETION OF SENTENCE ON COUNT VI, AT WHICH TIME STAY ON FINDINGS IN COUNT VII IS TO BE PERMANENT․  [¶] SENTENCE ON FINDING IS STAYED UNTIL COMPLETION OF SENTENCE ON COUNT VI, AT WHICH TIME STAY ON FINDING IN COUNT VIII IS TO BE PERMANENT.”

 It is true, the written judgment does not reflect exactly what the oral pronouncement said.   However, an exact wording is not necessary so long as the written judgment denotes what the trial court ordered.   A reading of the written judgment does just that.

In addition, on November 28, 1978, the trial court issued a nunc pro tunc order restating the order in a different way as to counts VII and VIII.

Both orders properly reflect the court's intention and do not need any modification as requested by defendant.

 However, an examination of the judgment of October 16, 1978, and the above mentioned nunc pro tunc order does require clarification in regards to the use allegation pursuant to Penal Code section 12022.5 in count VI, a point not raised by appellant or respondent.

The initial October 16, 1978, judgment shows the use allegation in count VI not to be true.

However, the trial court sentenced defendant to the state prison to the term prescribed by law on the use allegation, in count VI.

Then on November 28, 1978, the nunc pro tunc order was issued deleting:  “ ‘In Count VI, the jury found the use allegation pursuant to Section 12022.5 Penal Code not true․  [¶] by adding:  “In Count VI, the jury found the use allegation pursuant to Section 12022.5 Penal Code true.” ’ ”   And accordingly, the new judgment order reflected the change on November 28, 1978.

This was incorrect.   The jury did not find the use allegation in count VI to be true.   To the contrary, the jury found it not true.   This is evident by a reading of the verdict form in the use allegation in count VI, as well as the clerk's minute order.   Both documents support the initial October 16, 1978, judgment, showing the use allegation in count VI was not true.

In addition, the reporter's transcript showed that in count XVI (which had to be an error in transcription since there was no count XVI, and by dropping the X you are left with VI) which is a reasonable interpretation to mean count VI, the use allegation was again shown not to be true.

And when the court took the time to examine the jurors in the various counts, no mention was ever made of count VI as to whether or not the jurors agreed with that verdict.

Therefore, the final determination would have to be that the use allegation in count VI was found not to be true.   The nunc pro tunc order of November 28, 1978, was incorrect by deleting that portion which found the use allegation to be not true in count VI, and adding that it was found true.

Further, the oral pronouncement of sentence as it pertains only to the use allegation in count VI, in sentencing defendant to state prison for the term prescribed by law, should not have been made.

Though it is now academic based on the sentence defendant ultimately received, the record should stand corrected and reflect the true verdict and sentence.

This court orders a modification of the use allegation in count VI, on the November 28, 1978, nunc pro tunc order and judgment, by finding it not to be true.   And the sentence as to that use allegation be stricken.

Additionally, in count IX, no mention is noted in the minute order as to the disposition of the use allegation found to be true in that count, and in count IV, the great bodily injury allegation, even though defendant was sentenced by the trial court for the use allegation, and great bodily injury allegation.   The minute order shall be so corrected.

STATEMENT OF FACTS

B. The Retrial (2d Crim. No. 36900)

In counts I, II, and III, defendant was charged in count I, Penal Code section 187, murder;  count II, Penal Code section 209, kidnapping for purpose of robbery;  count III, Penal Code section 211, robbery.   Each count occurred on November 15, 1976, and involved the same victim, Violet Wauhob.

Testimony pertinent to this appeal was elicited from numerous witnesses.   It appears, defendant and Ricky Banks went to an apartment building managed by a De Santis couple and where the decedent lived.

After speaking with the De Santis couple, defendant separated from Banks.   Shortly thereafter, Banks observed defendant driving the victim's car, and defendant told Banks to follow him in another car.   They went and parked by an apartment building, where Banks walked to the side of decedent's car and saw the decedent alive and kneeled over in the front seat of the car.   She was asking defendant not to hurt her.   Banks claimed he asked defendant to release her.   Banks then went back to his car and again followed defendant to an alley where they both parked.   Banks then saw the decedent was dead.   Defendant told Banks he killed her because she started fighting with him.   Defendant got into Banks' car and Banks drove away.

Further testimony revealed the weapon used to kill decedent was obtained in a prior robbery committed by defendant and Banks.   Banks received the weapon from the prior robbery as part of his take.   The weapon was later sold by Banks but recovered by the police.

After his arrest, Banks entered a plea to two counts of robbery and one count of harboring a felon.   The murder charge and kidnapping for purpose of robbery charge were dropped.

Mr. Banks became a key prosecution witness.

Defendant Celestine testified in the first trial.   That testimony was read into the record in the retrial.   In essence, defendant testified that Banks was the one responsible for the incident involving the decedent.

Contention Regarding the Retrial

1. The motion to quash the jury panel should have been granted.

2. The trial court erroneously precluded defense counsel from presenting new evidence on the motion to quash the jury panel.

3. The trial court failed to fulfill its sua sponte duty to properly instruct the jury that Ricky Banks was an accomplice as a matter of law.

4. The sentences as to counts II and III must be stayed in their entirety.

Discussion Regarding the Retrial

I Should the motion to quash the jury panel have been given?

In order to make its own rulings, the trial court granted an extensive hearing to defendant and appellant.   The major portion of the testimony presented by appellant in its motion to quash the jury panel was given by Dr. Edgar Butler.

Dr. Edgar Butler, a sociologist with a Ph.D. from the University of Southern California, testified as to the disparity between racial groups who serve on jury panels in the northwest district of Los Angeles Superior Court and those who live within twenty miles of the courthouse.

Doctor Butler conducted a six-week survey of the prospective jurors who actually arrived at the Van Nuys courthouse, from May 14, 1979, through June 11, 1979.   Six hundred sixty-two questionnaires were passed out to prospective jurors and 647 of the questionnaires were returned.

Certain census tracts offered by the defense were situated within a 20-mile radius of the Van Nuys courthouse and they are used by the jury commissioner to select prospective jurors from the Van Nuys district.

Dr. Butler's research indicated that the racial breakdown of the County of Los Angeles showed 11.56 percent of the residents were Black, and 23.33 percent were Hispanic.

Doctor Butler also testified that the percentages for the entire county were the same as those for the area within a 20-mile radius of the Van Nuys courthouse since 60 percent of the population of Los Angeles County resides within the 20-mile radius.

Doctor Butler estimated that the percentage of Blacks and Hispanics within the 20-mile radius of the Van Nuys courthouse showed the following:

The doctor testified that under a comparative disparity index ¹ the minority population has a 91 percent less chance of being selected for jury duty in the Van Nuys District than the majority of the population which is Anglo.

He found that of the 91.4 percent of the jurors who were selected as prospective jurors in the northwest district that 2.6 percent of the jurors were Black and 3.2 percent had Spanish surnames.   Dr. Butler testified that the sole use of voter registration lists was a cause of the problem and that the use of the Department of Motor Vehicles driver's license list would solve the serious problem of minority underrepresentation among prospective jurors in the northwest district of Los Angeles Superior Court.

Blacks have a 76 percent less chance of being selected for jury duty and Hispanics have a 95 percent less chance in Van Nuys according to Doctor Butler.

However, there is not a disproportionate number of Blacks or Hispanics in the Van Nuys District when compared to the county as a whole so indicated the Doctor.

Doctor Butler testified that there was no problem in terms of the area designated from which jurors were drawn but there was a problem in the selection process.   Although he had not conducted a study as to the percentage of individuals of a particular race in a given district who registered to vote, he was of the opinion that minorities do not register with the same frequency as Whites.   He said that if the base is broadened from which the list is drawn to include driver's licenses, the statistics will adjust themselves in terms of the ultimate composition of the jury.

The Doctor did not know what prevented people from registering to vote who could vote.   He did not conduct a study in Los Angeles County as to why he felt Blacks did not register to vote in the same percentages as did Whites.   He based his opinion on what he believed happened in other counties.

The Doctor testified as to two areas which are within the 20-mile radius of the Van Nuys courthouse but were not included in the groups of jurors who could serve in Van Nuys.

The first area is located in East Los Angeles and is predominantly Hispanic (hereinafter referred to as Area A).   The other area is located in South Los Angeles and is predominantly Black hereinafter referred to as Area B).   The total population in Area A was 96,898 of which 75.1 percent were Mexican and 5.7 percent were Black.   The total population in Area B was 415,496 of which 76 percent were Black and 9.5 percent were Hispanic.   These figures were arrived at by a 10 percent random sampling.   None of these people were assigned to serve on jury panels in the northwest district.

However, Doctor Butler testified that in his conclusion that Los Angeles County and the Van Nuys District had a racial mix of 11.56 percent Blacks and 21.33 percent Hispanic, he excluded Areas A and B.   It was Doctor Butler's opinion that if Areas A and B were added into the Van Nuys District, there would be an increase in the percentage of minorities beyond the county norm.

Doctor Butler was later recalled at which time his testimony changed.   This time he testified that he had included Areas A and B in his calculations, and that if Areas A and B were excluded, the Van Nuys District would be underrepresented as to the minorities.   He based his conclusion by sampling census tracts within the 20-mile radius of the Van Nuys courthouse which included areas outside the census tracts as well as Areas A and B.   He could not give an opinion what a random sample would reveal if Areas A and B were excluded from the census tracts within the 20-mile radius.   He had dealt merely with his own survey.

Doctor Butler conducted another survey during the trial and was again recalled as a witness.   He testified that within the Van Nuys area 58.4 percent of the Blacks, 27 percent of the Hispanics and 85 percent of the Whites were registered to vote.   Again, this was done by random sampling.

Using 1970 census data, Doctor Butler testified that within the Van Nuys area, excluding Areas A and B, there were 6.25 percent Blacks and 12.8 percent Hispanics.   When Areas A and B were added into the calculation, the area consisted of 13.9 percent Black and 12.6 percent Hispanic.

Then he testified that based on the countywide statistics, i. e., 11.56 percent Black and 21.33 percent Hispanic, the Blacks have an 80 percent less chance than Anglos to be called as jurors in Van Nuys.   The Hispanics have a 74.6 percent less chance.   Combined, the Blacks and Hispanics have a 77.4 percent less chance of being called as jurors in Van Nuys.   He did not have an opinion or any calculation which correlated the percentage of disparity between the number of Black and Hispanic registered voters in the Van Nuys District to those individuals who actually showed up for jury duty in Van Nuys.

Additional testimony was presented by employees of the county.   Judd Holtzendorff, the assistant director of jury services for Los Angeles County agreed that there would be an increase in minority representation if the Department of Motor Vehicles lists were used.   Also, that the policy of the County of Los Angeles was to excuse persons for financial hardships, and that one way to help resolve the financial hardship situation was to increase the jury fee.   He identified a letter from the Los Angeles County Judicial Procedures Commission to the Board of Supervisors asking for an increase of jury fees to thirty dollars per day and fifteen cents per mile.   Also, a letter from the Chief Administrative Officer to the board concurring in the request.   Moreover, Mr. Holtzendorff identified a Board of Supervisors resolution approving the increase in jury fees if the state would reimburse the county for the increased costs of jury fees.

Mr. Holtzendorff testified that there was no systematic effort to exclude any particular area.   He explained that there were difficulties in calculating the 20-mile radius from the Van Nuys courthouse, but that it was possibly the result of a computer error.   He believed that a computer error may have led to some areas being included in the Van Nuys District that should have been excluded because they were outside the 20-mile radius while some tracts within the 20-mile radius were excluded inadvertently.   There was no intentional exclusion or systematic exclusion based on race, social economics, age or sex.

He also testified that the policy of the County of Los Angeles was to excuse individuals for financial hardships.

Mr. Holtzendorff also testified that under California Code of Civil Procedure section 206, subdivision (a), any person who has to travel over 20 miles is allowed an exemption.   He testified that 95 percent of the individuals who are sent questionnaires request the 20-mile exclusion from jury service.

Raymond Arce, the Jury Commissioner for Los Angeles County, testified that the 20-mile radius is computed not on the basis of “as the crow flies” but on actual miles driven.   He testified that Areas A and B were not intentionally excluded from the Van Nuys District but he did not know why they were.

He testified that the policy of the Los Angeles County Superior Court was to excuse any citizen who had to travel more than twenty miles.   He indicated that there were certain problems with using the Department of Motor Vehicle lists.   They were that:  there were no high priorities assigned in trying to develop a second list as a source of prospective jurors;  that there was no definition of the acceptable rate of duplication between the voter registration list and the driver's license list;  that 25 percent of the Department of Motor Vehicles lists contain incorrect addresses;  and that the jury commissioner had asked that the limited data processing resources of the county be used for automatic jury payroll.

A Mr. Benjamin Vargas, Jury Manager, testified as to the calculation of the mileage.   Originally, it was on the basis of 20 miles “as the crow flies.”   Later, it was changed to 15 miles, taking into account the length of travel necessary to get to a courthouse.   Still later, individual maps were used to determine when a prospective juror had to travel more than 20 miles to a courthouse.

Finally, testimony was presented to show parts of Areas A and B were within a 20-mile radius of the Van Nuys courthouse.

 In California the right to trial by a jury drawn from a representative cross section of the community is guaranteed equally and independently by the Sixth Amendment to the Federal Constitution and by article I, section 16, of the California Constitution.  (Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690;  People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.)

 In Duren v. Missouri (1978) 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, the United States Supreme Court set forth the principle that “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show:  (1) that the group alleged to be excluded is a ‘distinctive’ group in the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the community;  and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.”

Defendant contends the jury panel as selected at the Van Nuys courthouse is unconstitutional in that it is not representative of a cross-section of the community as it has a disproportionate number of Anglos in comparison to Blacks and Hispanics.

Do Blacks and Hispanics come within a cognizable class?

 In order for a group to qualify as being “cognizable” for purposes of a requirement that a jury be drawn from a representative cross-section of the community, the members must share a common perspective arising from their life experience in their group, that is, a perspective gained precisely because they are members of that group, and there must be no other members of the community capable of adequately representing the perspective of the group assertedly excluded.  (Rubio v. Superior Court (1979) 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595.)

Neither side in the present matter takes issue with the fact that to the extent Blacks and Hispanic persons are a cognizable class, and the defendant as a young Black man certainly is a member of that group.  (Whitus v. Georgia (1966) 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599;  Castaneda v. Partida (1977) 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498.)

However, respondent properly counters any argument defendant proposes that an economic status, age or educational level would also qualify as a distinctive group.   Such is not the case.

As set forth in People v. Cabral (1975) 51 Cal.App.3d 707, 124 Cal.Rptr. 418, a jury panel was not improperly chosen on the theory that defendants were poor people and allegedly registered in less significant numbers than other groups since those who do not choose to vote cannot be considered a cognizable group.

 And, age groups do not constitute distinctive groups.  (People v. Hoiland (1971) 22 Cal.App.3d 530, 99 Cal.Rptr. 523.)

Is there a violation of the requirement under Duren v. Missouri, supra, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 that there be a demonstration that the representation of the cognizable group be fair and reasonable in relation to the number of such persons in the community?

Defendant contends there can be no question that the jury selection process in the northwest district acted for a variety of reasons to exclude Blacks and those of Mexican descent from the jury panels.   Defendant states that since 21.33 percent of the population of the northwest district is Hispanic and only 3.2 percent of the jurors have Spanish surnames it is illogical to contend that such is a fair and reasonable representation in relation to the number of persons of Hispanic descent in the northwest district.   And given the fact that 11.56 percent of the northwest district population is Black, it is equally nonrational to suggest that the 2.6 percent figure which reflects the percentage of Black prospective jurors is fair.  (Sims v. Georgia (1967) 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634;  Jones v. Georgia (1967) 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25.)

Appellant would profess that a showing of these figures clearly demonstrates that there is a form of discrimination in excluding Blacks and Hispanics from the Van Nuys juries.

 The burden of proof of an alleged class in the selection of persons for jury duty is on the party who asserts the discrimination.  (Patton v. Mississippi (1947) 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76.)   But once a prima facie case of discrimination in selecting a jury panel is presented in a criminal case, the burden then falls upon the state to overcome it.  (Whitus v. Georgia, supra, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599.)

The question of what constitutes a sufficient showing of discrimination will depend upon the particular case.

 A trial court is not obligated to accept the use of statistical formulas, designed to show whether or not a segment of the community had been chosen for jury service in numbers consistent with a random selection from the general population, that were based on unverified estimates of the total adult population of each district rather than on the list of registered voters within the district from which prospective jurors' names were actually drawn.  (People v. Powell (1974) 40 Cal.App.3d 107, 115 Cal.Rptr. 109.)

Here defendant attempted to show primarily through the testimony of Doctor Butler the alleged disparity between the Blacks and Hispanics within the Van Nuys district, and those Blacks and Hispanics actually chosen for jury duty.

However, without restating the statistical data given by Doctor Butler, it is important to note that in later testimony he materially contradicted his prior testimony and gave the trial court different statistical data.

In fact, after a week's continuance, Doctor Butler was again recalled as a witness.   He supplied the trial court with statistics of the Van Nuys District, which he was unable to provide when first he testified.   He did not provide the trial court with any calculations that corrected the percent of disparity between the Black and Hispanic registered voters in the Van Nuys District as to those persons who actually showed up for jury duty in Van Nuys.

The trial court did not accept the validity of the statistics testified to by Doctor Butler.   In fact, the trial court made certain findings of facts in summation of Doctor Butler's testimony.   Some of the findings were:

(1) Doctor Butler's statistics were unreliable because the statistics kept changing every time he testified.

(2) Doctor Butler's testimony was not credible.

(3) The basis for Doctor Butler's statistics was unsound.

(4) It was unclear how Doctor Butler arrived at his statistics.

(5) The methodology of adding samplings together was not statistically sound.

(6) The six-week sampling at the Van Nuys courthouse was unrealistic because it did not take into account the gasoline crisis which was occurring in Los Angeles County at that time.

(7) The six-week sampling covered too short a period of time especially in view of the gasoline crisis.

 From demonstrated improbabilities a trial court may infer that the selection system is purposefully or systematically excluding certain segments of the community.  (People v. Jones (1972) 25 Cal.App.3d 776, 102 Cal.Rptr. 277.)

The proverbial consequence of such a demonstration is to shift the burden of proof to the respondent to demonstrate a justifiable and rational explanation for the disparity.   But the trial court was not required to accept Doctor Butler's statistical conclusions unless it was persuaded that they were founded on substantial reliable data.  (People v. Collins (1968) 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33.)

And obviously appellant was not able to persuade the trial court with the testimony it presented.

The trial court found not only that the objects to be measured, that is, the entire population in the district rather than the population eligible for jury service, and the system of measurement were both wrong.

This court will not replace the factual findings of the trial court, based on the reliable evidence presented to it, in the absence of any abuse by the trial court.

Here there was none.

Though the evidence was found by the trial court to be insufficient to find an underdiscrimination by Blacks and Hispanics on the Van Nuys juries, is there still a systematic exclusion of the groups in the jury selection process?

Defendant would maintain that the use of the voter registration lists inevitably exclude the majority of eligible Black and Hispanic citizens.   Appellant would advocate the use of Department of Motor Vehicles' lists to increase minority representation.

 The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.

This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community;  frequently such complete representation would be impossible.

But it does mean that prospective jurors shall be selected by court officials without systematic exclusion of any of these groups.  (Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181;  People v. White (1954) 43 Cal.2d 740, 278 P.2d 9.)

 Neither the jury roll nor the venire need be a prefect mirror of the community or accurately reflect the proportionate strength of every identifiable group.  (People v. Lewis (1977) 74 Cal.App.3d 633, 141 Cal.Rptr. 614.)

 The use of voter registration lists as the sole source of jurors is not constitutionally invalid, at least in the absence of a showing that the use of those lists resulted in the systematic exclusion of a cognizable group or class of qualified citizens, or that there was discrimination in the compiling of such voter registration lists.  (People v. Remiro (1979) 89 Cal.App.3d 809, 153 Cal.Rptr. 89.)

 It is defendant's burden to establish prima facie the systematic exclusion.  (Adams v. Superior Court (1974) 12 Cal.3d 55, 115 Cal.Rptr. 247, 524 P.2d 375.)

And to support its burden, defendant also presented the testimony of Mr. Arce and Mr. Holtzendorff along with that testimony of Doctor Butler.   Their testimony primarily showed the manner in which jurors were selected or excused from serving because of financial hardship.   Also, how the twenty-mile radius was established and implemented.   And, their beliefs that by using the Department of Motor Vehicles' lists, and paying higher jury fees, the minority representation would be increased.

However, the trial court did not find a systematic exclusion of Blacks or Hispanics from within the Van Nuys District based upon the use of the voter lists.

The testimony of officers, such as jury commissioners, is particularly important as bearing on whether or not there has been a class or race discrimination in the selection of persons for jury service.  (Hernandez v. Texas (1954) 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866.)

But Mr. Arce indicated in his testimony, when asked by appellant's counsel, that neither he nor Mr. Holtzendorff was engaged in any intentional exclusion of any particular segment of the community.   And, Mr. Arce did testify to the difficulties involved in using the Department of Motor Vehicles' lists, and that the use of the voter registration lists was a clearer method.

Such significant testimony would support the trial court in its belief, defendant had failed to carry its burden.   The use of a list of registered voters is constitutionally “unassailable.”  (People v. Keith (1975) 52 Cal.App.3d 947, 125 Cal.Rptr. 676.)

The responsibility rightfully belongs to the Legislature to change the method for the selection of jurors where it can be shown a better system is available.²

The court's responsibility is to carry out the present method, and to act only where there has been a failure to meet the constitutional demands intended within the present existing method.

 In summary the defendant has failed to prove an underrepresentation or systematic exclusion of those minorities on the jury venire within the Van Nuys District.

II

 Did the trial court erroneously preclude appellant from presenting new evidence on the motion to quash the jury panel?

The initial motion to quash the jury panel was denied on July 23, 1979.   The trial court, however, did order that certain census tracts in the areas described as A and B be included in the calculations of the twenty-mile radius of Van Nuys, and that other areas outside the twenty-mile radius be excluded.

On September 12, 1979, appellant indicated a desire to present evidence as to what had occurred since July 23, 1979.

Appellant intended to show that the alleged disparity which existed in July still existed in September.   Also, to show that one-third of the jurors were not included from areas A and B as ordered by the court.   And finally to show distances from the Van Nuys courthouse to other parts of the county.

The trial court indicated it would not rehear the motion based on appellant's offer of proof, unless, there was new evidence on issues which had not been previously litigated and decided by the court.

Specifically, the trial court offered to hear any evidence from appellant on the following issues:

1. Whether the jury commissioner complied with the court's order to draw in the jury panels from the census tracts in areas A and B which the court found to be within the twenty-mile radius.

2. Whether juries from areas A and B (the areas which should have been included in the district but were not included prior to the court's initial ruling) have in some way been systematically excluded from the venire for reasons that were not previously litigated at the initial hearing.

3. Whether there has been a systematic exclusion of jurors that has arisen since the last hearing.

4. Statistics on the racial and ethnic composition (including results of defense counsel's latest questionnaire) on the composition of the current jury panel.

The appellant desired to relitigate certain issues by submitting the matter on the testimony from the previous hearing with further testimony from Mr. Arce to show one-third of the panel ready for trial was comprised of jurors not taken from areas A and B.

The trial court properly denied the motion to relitigate the motion to quash the jury panel.   The court did not refuse to entertain the motion.   Appellant's offer of proof was simply insufficient to have the motion reheard.

In answer to the offer of proof, regarding the new proffered evidence of Mr. Arce's testimony, the court stated it would have no bearing on the issues, and was immaterial based on what it had already found to be the case on the evidence presented.   And further that Mr. Arce's actions were the result of regular procedures followed by the jury commissioner in the regular course of his business when those jurors within the one-third group, not included in areas A and B, requested postponements or continuances for jury duty.

In essence, the trial court properly did not wish to relitigate the entire motion, but kept it open to appellant to show, by way of proof, any new evidence to assist the court in making its determination.   This appellant was unable to do and the court rightfully proceeded to trial.

The court's prior order denying appellant's motion to quash the jury panel in the Van Nuys District stands.

III

 Did the trial court properly fail to fulfill a sua sponte duty to instruct that Ricky Banks was an accomplice as a matter of law?

CALJIC 3.16 ³ sets forth when a witness is considered an accomplice as a matter of law.

To establish that Banks was an accomplice as a matter of law, the evidence on the issue must be undisputed and such that reasonable persons may draw but one inference which points unerringly to the existence of such fact.   While the facts are disputed or susceptible of different inferences the question of complicity must be submitted to the jury.  (In re Pratt (1980) 112 Cal.App.3d 795, 170 Cal.Rptr. 80;  People v. Jones (1964) 228 Cal.App.2d 74, 39 Cal.Rptr. 302.)

Penal Code section 1111 defines an accomplice as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.

The testimony produced at the trial revealed a conflict in the testimony as to Banks' knowledge and intent in the crimes connected with the decedent.   Without again setting forth that testimony, it is sufficient to show a conflict in that Banks testified he did not kill the decedent, nor did he know appellant intended to kill her.   Banks further testified he did not take part in stealing the victim's car or assist in the kidnapping.

He did participate with appellant in the commission of other crimes, but the evidence was definitely in conflict as to his involvement in the crimes alleged in the retrial.

Testimony tended to show Banks was with appellant on the day of the murder, but that he did not participate in, or have any prior knowledge of the commission of the crimes.

 It is well established that mere presence near the scene of a crime cannot, in itself, make a person an accomplice.  (People v. Strickland (1974) 11 Cal.3d 946, 114 Cal.Rptr. 632, 523 P.2d 672.)

According to the evidence, the crime to which Banks admitted and pled guilty, prior to the trial, that of an accessory after the murder, occurred after the crimes had been committed by the defendant.

 One who is a party to a conspiracy and active in carrying out its object is an accomplice.  (People v. Jehl (1957) 150 Cal.App.2d 665, 310 P.2d 495.)

 In order to come within the definition of an accomplice, a person must have guilty knowledge and intent with regard to the commission of the crime.

 And one is an accomplice who knowingly, voluntarily and with common intent with the principal offender unites in the commission of the crime.   People v. Lamb (1955) 134 Cal.App.2d 582, 285 P.2d 941.)

 Whether a witness for the prosecution is or is not an accomplice may be a question of law or fact.

If the facts with respect to Banks' participation in the crimes were evident and not disputed, it would be up to the court to determine whether or not he was an accomplice.

And even where there might be evidence to connect Banks to the crimes, but the facts are disputed or susceptible of different inferences, that question of complicity should be given to the jury.

People v. Jones, supra, 228 Cal.App.2d 74, 94–95, 39 Cal.Rptr. 302, states:  “Where a witness is an accomplice as a matter of law, the court should so charge, and an instruction defining an accomplice is not necessary.   Conversely, where, as a matter of law, the witness is not an accomplice, the court does not err in refusing to charge that he is or in refusing to submit the issue to the jury.

But where it is for the jury to determine whether or not the witness is an accomplice, the court should so charge, and should instruct as to what constitutes an accomplice.”

Defendant's contention that the trial court should have instructed sua sponte that Banks was an accomplice as a matter of law would not be consistent with the discrepancies in the evidence.

The court did instruct on the issue of an accomplice and provided the jury with all the required accomplice instructions necessary for the jury to make its determination.

No sua sponte instruction on a witness as an accomplice as a matter of law was in order.

IV

Should the sentences for count II, kidnapping for purposes of robbery, and count III, robbery, be stayed under Penal Code section 654?

Penal Code section 654 states:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

Appellant maintains the sentence in count III, robbery, must be stayed since the robbery forms the basis of the murder conviction under a felony murder rule theory.   And that count II, kidnapping for purpose of robbery, be stayed since defendant's intent was to commit a robbery.

 Respondent submits that Penal Code section 654 mandates that the sentence on count III, robbery, be stayed because of the sentence imposed on count II, kidnapping for the purpose of robbery.

This court is in agreement and would state without further discussion that the judgment be corrected to show that count III, robbery, be stayed until completion of the sentence on count II, kidnapping for the purpose of robbery, since count II carries the more severe sentence, and then count III's stay to be permanent.   In reality, the issue is moot based on the sentence defendant received in count I, murder.

 Whether or not the sentence in count II, kidnapping for the purpose of robbery, should be stayed in light of the sentence on count I, murder, requires an examination of the evidence in light of Penal Code section 654.

The evidence revealed the specific intent of the defendant was to commit a robbery.   In furtherance of that intent, the evidence showed defendant removed the victim to a different location resulting in the kidnapping.

The act forming the basis of the murder was not incidental to the kidnapping for the purpose of robbery.

If an accused entertains multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though violations shared common acts or were parts of an otherwise indivisible course of conduct.  (People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905.)

Defendant's intent to kidnap the decedent so that he could commit a robbery was divisible and not incidental to his intent in murdering the decedent.

And as such, Penal Code section 654 does not require that count II, kidnapping for the purpose of robbery, be stayed until completion of the charge in count I, murder.

The order of the trial court in sentencing defendant on count II and making it concurrent with count I was a proper order and should not be corrected.

CONCLUSION

The judgment of appellant Celestine shall reflect the following sentence and modifications as ordered by this court.

In count I, Penal Code section 187, murder, first degree, state prison for the term prescribed by law;  Penal Code section 12022.5, personal use of a weapon, state prison for the term prescribed by law, stayed pending appeal, then permanent upon completion of sentence on count I.

In count II, Penal Code section 209, kidnapping for the purpose of robbery, state prison for the term prescribed by law, concurrent with count I;  Penal Code section 12022.5, personal use of a weapon, state prison for the term prescribed by law, stayed pending appeal, then permanent upon completion of sentence on count I.

In count III, Penal Code section 211, robbery, first degree, state prison for the term prescribed by law, stayed pending appeal then permanent upon completion of the sentence on count II;  Penal Code section 213, great bodily injury, stayed pending appeal then permanent upon completion of sentence on count II;  Penal Code section 12022.5, personal use of a weapon, stayed pending appeal, then permanent upon completion of count I.

In count IV, Penal Code section 211, robbery, second degree, the base term, state prison for the term prescribed by law;  Penal Code section 213, great bodily injury, term prescribed by law, consecutive to count IV.

In count V, Penal Code section 220, assault with intent to commit rape or robbery, state prison for the term prescribed by law, stayed until completion of count IV, then permanent.

In count VI, Penal Code, section 211, robbery, first degree, state prison for the term prescribed by law, consecutive to count IV.

In counts VII and VIII, Penal Code section 211, robbery, first degree, state prison for the term prescribed by law, consecutive to count IV;  Penal Code section 12022.5 findings in counts VII and VIII stayed until completion of sentence on count VI, then permanent.

In count IX, Penal Code section 211, robbery, first degree, state prison for the term prescribed by law, consecutive to count IV;  Penal Code section 12022.5, personal use of firearm, consecutive to count IV.

In counts X, XI and XII, Penal Code section 211, robbery, first degree, state prison for the term prescribed by all, all counts consecutive to count IV.

An examination of the trial court's records reveals no sentence was apparently imposed on the two prior convictions for which the defendant admitted in court.

The defendant received a life sentence on count I, murder, therefore it would serve no useful purpose to remand the matter back to the trial court for sentencing on those two priors.

In reality, the sentences on all of the counts and findings will merge into count I, murder, since it does carry a life sentence.

The judgment as modified is affirmed.

Defendant to receive credit for the 1000 days in custody, plus the 334 days given for good time work time.

FOOTNOTES

FOOTNOTE.  

1.   “Comparative disparity” is the process of ascertaining the lessened probability of a certain class of persons to be called as jurors in relation to their population.   Comparative disparity figures indicate the percent of probability that a particular group has of being selected as a juror as compared with another group.

2.   The Legislature recently enacted Code of Civil Procedure section 204.7 (Stats.1980, ch. 81, p. –––, § 16) effective July 1, 1981, which directs that “Source lists of jurors shall ․ include those who are registered voters, and to the extent that systems for producing jury lists can be practically modified, without significant cost, shall also include ․” licensed drivers.   The new statute may present practical difficulties in the compilation of qualified jury lists, in that while voter registration lists include only citizens of the United States, licensed driver lists include aliens, both legal and illegal, legally incompetent to serve as jurors.

3.   CALJIC 3.16 provides:“If the crime of _ was committed by anyone, the witness _ was an accomplice as a matter of law and his testimony is subject to the rule requiring corroboration.”

DEVICH,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

SPENCER, P. J., and L. THAXTON HANSON, J., concur.